holding warrant-less seizure of vehicle upon probable cause as authorized by forfeiture statute illegal because exceptions to the warrant requirement do not apply
How later courts described this case
- holding warrant-less seizure of vehicle upon probable cause as authorized by forfeiture statute illegal because exceptions to the warrant requirement do not apply
- “We do not doubt that, if the seizure of the car . was valid, the later search . . . was also valid.”
- limiting Lockett and Burge
Written by the judges who cited it.
The opinion
WALLACE, Circuit Judge
(dissenting) :
I respectfully dissent.
I agree with the majority that if the seizure of the car was valid, the subsequent search was also valid. But I do not feel at liberty to find the seizure invalid. The majority concludes that Coolidge v. New Hampshire, 403 U.S. 443 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971), requires us to suppress the evidence. However, the Coolidge Court was never presented with the possibility of a lawful warrantless seizure pursuant to a forfeiture statute and probable cause. The majority seems to read Coolidge as excluding such a result simply because the Coolidge Court did not mention forfeiture seizures as an exception to the warrant requirement. This construction assumes that the Court was dealing with all possible exceptions whether or not they were in issue in that case. I cannot concur with such an interpretation.
I believe this case is governed by United States v. Arias, 453 F.2d 641, 642-643 (9th Cir. 1972), a post-Coolidge case, where we affirmed a similar seizure and search. The majority’s attempt to distinguish Arias on the basis that the search could have been upheld on the basis of the automobile exception does not change the fact that there our court did not do so. The only issue facing us in Arias was whether the officers had probable cause to believe that the car had been used to facilitate the transportation of contraband. Arias had argued that “ ‘the facts of this case clearly bring it within the ruling of Howard v. United States, 423 F.2d 1102 (9th Cir. 1970),’ that the forfeiture provisions of 49 U.S.C. §§ 781 and 782 cannot vindicate a vehicular search where seizing officers are without ‘probable cause . . . . ’” 453 F.2d at 643 . We distinguished the facts in Arias from the facts in Howard because the officers had good reason to believe that Arias had used the car in violation of the law. We affirmed Arias’ conviction, holding that where the officers have probable cause to believe that the automobile has been used to facilitate the transportation of contraband, a war-rantless search following a seizure pursuant to 49 U.S.C. §§ 781 and 782 is valid.
The majority apparently argues that the search in Arias was valid not because it was conducted with probable cause that the forfeiture statute had been violated, but because the officers had probable cause and exigent circumstances. If there were exigent circumstances in Arias , however, we did not discuss them nor base our holding upon them. Indeed, the Arias fact situation indicates that if there were ever exigent circumstances, they no longer existed at the time that the officers conducted the search. Arias had employed a woman to drive a load car from Mexico to her home in Los An-geles. The contraband was discovered at the port of entry and the driver agreed to cooperate in apprehending Arias. The woman drove the load car to her home where she and customs officials waited for Arias to pick up the car. When Arias arrived, he left his station wagon parked at the woman’s home and proceeded to drive the load car down the street. Apparently recognizing that he was under surveillance, he returned to the woman’s home where he was arrested. There is no indication that he was either in the station wagon or attempting to flee at the time of his arrest. The logical inference is that he was either in the load car or had just gotten out of it.
The station wagon was seized and taken to a federal facility where it was subsequently searched. It is clear from the case that the search was conducted pursuant to the forfeiture statute. We stated:
Although a cursory weapons search of Arias’ station wagon yielded negative results, a more thorough probe, *290 pursuant to 49 U.S.C. §§ 781 and 782, conducted at a federal facility on Terminal Island disclosed a quantity of red seconal capsules and “marihuana debris” lodged in the vehicle’s left rear quarter panel.
453 F.2d at 642-643 (footnotes omitted). There was no warrant for the search and apparently no warrant for the seizure. There were no exigent circumstances justifying the seizure other than The usual concern that an ally might move the car after the officers had left. Once the station wagon had been taken to the federal facility, there was no possibility that the evidence would be destroyed. We upheld the search on the ground that once the officers had probable cause for the seizure, the subsequent search was reasonable under the Fourth Amendment. We did not rely upon any other justification for the search or seizure.
The fact situation in this case is indistinguishable from Arias . The officers had probable cause to believe that McCormick had used the Buick to transport contraband. The officers seized the car and drove it to the federal office building where it was subsequently searched. If there were exigent circumstances present in Arias , then there were also exigent circumstances present in this case. Unless we are to overrule Arias , we are compelled to uphold the search of McCormick’s car.
The majority would require a warrant for the seizure and search in this situation because McCormick, following his arrest, could not have gained access to his car. Thus, they conclude, it “more resembled a house than a moving or mobile vehicle.” Such a theory appears to me to be inconsistent with the recent teachings of a Supreme Court plurality in a case factually distinguishable but close enough to provide enlightenment:
One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one’s residence or as the repository of personal effects. A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view .... [Ijnso-far as Fourth Amendment protection extends to a motor vehicle, it is the right to privacy that is the touchstone of our inquiry.
Cardwell v. Lewis, 417 U.S. 583, 590 , 94 S.Ct. 2464, 2469 , 41 L.Ed.2d 325 (1974).
Further, the majority fails to acknowledge that an ally could have easily moved the car and destroyed any evidence. If the majority means to require the officers to stand guard over the car while they are awaiting a warrant, they have in effect authorized a seizure, but required a warrant for the search. See Terry v. Ohio, 392 U.S. 1, 16 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). Such an authorization would be inconsistent with their beginning premise that “if the seizure of the car . . . was valid, the later search . . . was also valid.” More importantly, I find such a requirement to be inconsistent with United States v. Evans, 481 F.2d 990, 994 (9th Cir. 1973). I would affirm.